What to know about Google’s second antitrust trial

Google is on trial for the second time in two years for alleged antitrust violations, as the Department of Justice (DOJ) accuses the tech giant of dominating all sides of the digital advertising technology market. 

The trial got underway Monday in Virginia, just more than a month after a federal judge across the Potomac River in Washington ruled that Google illegally maintained a monopoly over online search.

However, the landmark antitrust ruling in August is largely separate and distinct from the ad tech trial, expected to stretch for four weeks in U.S. District Judge Leonie Brinkema’s courtroom in Alexandria. 

Here’s what to know about Google’s second antitrust trial: 

What is the Justice Department arguing? 

The Justice Department sued Google in January 2023, accusing the tech giant of engaging in “anticompetitive and exclusionary conduct” to cement its dominance over ad tech tools.  

Ad tech tools are used by website publishers and advertisers to sell and buy ad space online, generating revenue for publishers that helps maintain a free and open internet.  

The DOJ argues Google controls all sides of the ad tech market, including tools used by publishers to offer ad space, tools used by advertisers to buy ad space and an exchange that matches publishers and advertisers. 

The tech giant is accused of establishing its dominance over ad tech by eliminating competitors through acquisitions, and then used this dominance to force more publishers and advertisers to use its services. 

“Google’s isn’t here because they are big,” DOJ lawyer Julia Tarver Wood said in opening statements Monday, according to The Wall Street Journal. “They are here because they use that size to crush competition.” 

The DOJ’s arguments are based on “well-established principles of antitrust law,” said Paul Swanson, an antitrust partner at Holland & Hart law firm. 

“They’re not having to kind of make things up in the way that I think DOJ has had to do a bit in its recent case against Apple,” he told The Hill. “They’re not having to blaze so many new trails.”

The agency filed an antitrust suit against Apple earlier this year, accusing the iPhone maker of illegally maintaining a monopoly over the smartphone market.  

“They can say, ‘Look, it has long been the law that a company cannot go out and buy a competitor like Google did with DoubleClick for Publishers and use that acquisition to obtain monopoly power,’” Swanson said. 

Google’s 2008 acquisition of DoubleClick for Publishers, an ad tech tool, has come under particular scrutiny. At the time of the acquisition, DoubleClick controlled 60 percent of the market.  

Google further entrenched DoubleClick’s dominance by linking it to Google’s ad demand through the tech giant’s ad exchange, eventually growing its market share to 90 percent, according to the DOJ. 

“A party like Google cannot use its market power in one space, Google here running an ad exchange, to force people to use its products or services in another space, such as on the publishing side,” Swanson added. “That kind of tying of two products or services is also unlawful if you’ve got market power.” 

“DOJ is able to take traditional antitrust concepts and apply it in this market space and do it in a way that it tells a pretty compelling story, one that I think consumers are probably a little less aware of but that does have these broader implications,” he continued. 

What is Google arguing? 

Google is arguing the DOJ’s take on the ad tech market is too narrow and that the tech giant faces a variety of competitors in the ad tech space, including Comcast, Disney, Walmart, Target, Microsoft, Amazon and Meta. 

The DOJ’s case is based on an outdated view of the internet, Google alleged in a recent filing, focusing on “a limited type of advertising viewed on a narrow subset of websites when user attention migrated elsewhere years ago—to apps, social media and Connected TV.” 

Google’s lead attorney Karen Dunn described the case at opening arguments “like a time capsule that if you broke it open you would find a BlackBerry, an iPod and a Blockbuster Video card,” according to Reuters. 

However, Swanson noted the case isn’t the first in which “technology has far outpaced the justice system.” 

“I don’t think that does away with what DOJ is trying to achieve here, just as changes in the marketplace didn’t do away with what DOJ tried to do with Microsoft two and a half decades ago,” he said, referring to the landmark antitrust case against Microsoft in 2001. 

Google is also seeking to frame the case as an effort to force the tech giant to deal with its competitors, which would likely represent an uphill battle for the DOJ, said Rebecca Haw Allensworth, a professor at Vanderbilt Law School.

“I think this case is a real toss up,” Allensworth told The Hill. “I guess I would give the edge ultimately to Google, unlike in the search case, because the law here is really unfavorable for plaintiffs.” 

“American duty to deal law is pretty strict against plaintiffs,” she added. “It recognizes a duty to deal in only very, very limited cases.” 

The Supreme Court has long held that antitrust law does not restrict companies’ ability to choose who they deal with. It reaffirmed this principle in Verizon v. Trinko in 2004, noting that the law does not require companies to deal with their rivals. 

“I think that the government makes a good argument that Google is acting anti competitively,” Allensworth said. “The problem is that the antitrust laws have developed in an unfavorable way to really recognize that very real competitive harm.” 

What does the search decision mean for the ad tech trial? 

The ad tech trial comes on the heels of U.S. District Judge Amit Mehta’s decision last month in Google’s search case. 

Mehta found that the tech giant illegally maintained a monopoly over online search through a series of exclusive agreements with partners like Apple that ensure Google is the default search engine on their devices. 

While the search decision marked a win for DOJ, there is not a lot of “legal overlap” between the two cases, Allensworth noted. 

“I think the only way in which it’s relevant is just that it’s another data point of a monopolization case against a Big Tech company by the government,” she said. “It’s, maybe you would say, a barometer of what courts might do when facing a case of that description, but it is describing a different market and a different set of behaviors.” 

However, Roger Alford, a law professor at the University of Notre Dame, suggested the search decision could be significant when it comes to defining the market in the ad tech case.  

As in the ad tech case, Google argued for a broader market definition in the search case. However, the judge ultimately rejected its definition.  

“That bodes well for the DOJ that it will also have a traditional market definition in this case,” Alford said. 

As Google’s ad tech trial gets underway, discussions about remedies in the search case will likely not be resolved for months. Mehta said during a hearing Friday that he expects to deliver a punishment in the case by August 2025, according to The New York Times.